Citation Nr: 9818591
Decision Date: 06/17/98 Archive Date: 06/23/98
DOCKET NO. 97-22 579 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance or by reason of being housebound.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
K. Gallagher, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1952 to July
1954.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 1997 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in San Juan,
Puerto Rico, which denied special monthly pension based on
the need for regular aid and attendance or by reason of being
housebound.
CONTENTIONS OF APPELLANT ON APPEAL
By appealing the RO’s decision, the veteran contends, in
essence, that the RO committed error in denying his claim for
special monthly pension based on the need for regular aid and
attendance or by reason of being housebound.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for special monthly pension
based on the need for regular aid and attendance or by reason
of being housebound.
FINDINGS OF FACT
1. The veteran has alcohol dependence, in alleged remission;
chronic liver disease, secondary to chronic alcoholism with
ascites, hepatomegaly and mild asterixis, secondary to same;
and systolic hypertension.
2. The veteran is not blind or nearly blind or a patient in
a nursing home.
3. The veteran is able to carry out activities of daily
living, including the ability to eat, dress, and bathe by
himself, as well as to attend to needs of nature by himself
without assistance, and except for shaving.
4. The veteran states that he needs assistance from his sons
with shaving because of hand tremors which cause him to cut
himself.
5. There is no limitation of motion or deformity of the
spine.
6. The veteran is able to ambulate well with adequate
balance and propulsion and without deficit in weightbearing;
he can walk without the assistance of another person for 100
km without becoming tired; he uses no mechanical aid for
walking.
7. The veteran is able to travel out of and away from his
home at will to attend medical appointments and also go to
the barber shop and a nearby grocery store to buy food and
cigarettes.
CONCLUSION OF LAW
The criteria for special monthly pension based on the need
for regular aid and attendance or by reason of being
housebound have not been met. 38 U.S.C.A. § 1521(d), (e)
(West 1991); 38 C.F.R. §§ 3.351(a)(1), (b), (c), (d),
3.352(a) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In February 1997, the RO received a claim for VA pension
benefits and, having granted pension benefits, also
considered entitlement for special monthly pension based on
the need for regular aid and attendance and by reason of
being housebound. The Board concludes that the veteran’s
application may be properly construed as a well grounded
claim for special monthly pension based on the need for
regular aid and attendance and by reason of being housebound
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well grounded claim for an increased
rating).
The law provides increased pension benefits to a veteran by
reason of need for aid and attendance or of being housebound.
38 C.F.R. § 3.351(a)(1) (1997). A veteran will be considered
in need of regular aid and attendance if he or she (1) is
blind or so nearly blind as to have corrected visual acuity
of 5/200 or less, in both eyes, or concentric contraction of
the visual field to 5 degrees or less; or (2) is a patient in
a nursing home because of mental or physical incapacity; or
(3) establishes a factual need for aid and attendance under
criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R.
§ 3.351(c) (1997). Section 3.352(a) provides the basic
criteria for regular aid and attendance and for the
permanently bedridden as follows:
[The] inability of a claimant to dress or
undress himself (herself), or to keep
himself (herself) ordinarily clean and
presentable; frequent need of adjustment
of any special prosthetic or orthopedic
appliances which by reason of the
particular disability cannot be done
without aid; inability of claimant to
feed himself (herself) through loss of
coordination of upper extremities or
through extreme weakness; inability to
attend to the wants of nature; or
incapacity, physical or mental, which
requires care or assistance on a regular
basis to protect the claimant from
hazards or dangers incident to his or her
daily environment. “Bedridden” will be
a proper basis for the determination.
For the purpose of this paragraph
“bedridden” will be that condition
which, through its essential character,
actually requires that the claimant
remain in bed. The fact that claimant
has voluntarily taken to bed or that a
physician has prescribed rest in bed for
the greater or lesser part of the day to
promote convalescence or cure will not
suffice. It is not required that all of
the disabling conditions enumerated in
this paragraph be found to exist before a
favorable rating may be made. The
particular personal functions which the
[claimant] is unable to perform should be
considered in connection with his or her
condition as a whole. It is only
necessary that the evidence establish
that the [claimant] is so helpless as to
need regular aid and attendance, not that
there be a constant need. Determinations
that the veteran is so helpless, as to be
in need of regular aid and attendance
will not be based solely upon an opinion
that the claimant’s condition is such as
would require him or her to be in bed.
They must be based on the actual
requirement of personal assistance from
others.
38 C.F.R. § 3.352(a) (1997).
In this case, the evidence of record, including a March 1997
VA Aid and Attendance/Housebound examination report, reflects
that the veteran has alcohol dependence, in alleged
remission; chronic liver disease, secondary to chronic
alcoholism with ascites, hepatomegaly and mild asterixis,
secondary to same; and systolic hypertension. The veteran is
not blind or nearly blind or a patient in a nursing home.
The veteran is able to carry out activities of daily living,
including the ability to eat, dress, and bathe by himself, as
well as to attend to needs of nature by himself without
assistance. However, he has difficulty shaving. With regard
to the latter, he reported to the April 1997 VA examiner that
seeks assistance from his sons with shaving because of hand
tremors which cause him to cut himself. He is shaved twice a
week by his sons.
There is no limitation of motion or deformity of the spine.
The veteran is able to ambulate well with adequate balance
and propulsion and without deficit in weightbearing. He can
walk without the assistance of another person for 100 km
without becoming tired, and he uses no mechanical aid for
walking. The veteran is able to travel out of and away from
his home at will to attend medical appointments and also go
to the barber shop and a nearby grocery store to buy food and
cigarettes.
The Board concludes, in evaluating the evidence of record in
light of the regulatory criteria for special monthly pension
based on the need for regular aid and attendance or by reason
of being housebound, that the preponderance of the evidence
is against the claim.
ORDER
Special monthly pension based on the need for regular aid and
attendance or by reason of being housebound is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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